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“The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism”

Written by The Frontier Post

John Berlau

At gatherings this July 4, there will likely be impassioned conversations abo-ut recent Supreme Court decisions. But it’s a ruling a few weeks ago from a federal appeals court that could be most relevant to the causes celebrated on Independence Day.
Critics and proponents of the ruling by the U.S. Court of Appeals for the Fifth Circuit in Jarkesy v. SEC have called revolutionary the new limits it places on federal regulatory agencies’ use of administrative law judges, a core tool of the administrative state. “A potential blockbuster” is how Bill Funk, Distinguished Professor of Law Emeritus at Lewis & Clark Law School, describes the decision for the Center for Progressive Reform, before blasting it and saying it “begs reality.”
Jarkesy is indeed revolutionary—both in the jurisprudence it could usher in limiting the power of the administrative state and in its concern for issues involved in the American Revolution. The ruling “has taken what could be a historic step toward restoring the Constitution’s checks and balances,” predicts Mario Loyola, professor at Florida International University and my colleague as senior fellow at the Competitive Enterprise Institute (CEI), writing for the Wall Street Journal.
These checks and balances—including the right to a jury trial for common law offenses and a separation of powers of the different branches of government—came about due to the abuses the Founding generation suffered at the hands of Great Britain. Documents of the Founding era from the writings of George Washington to the Declaration of Indepen-dence itself list as grievances the quasi-courts created by the British to prosecute tax and trade offenses. These courts, which bypa-ssed jury trials and due pro-cess for the colonists, and were under the rhetorical thumb of the British officials prosecuting the alleg-ed offenses, bear a striking resemblance to the administrative venues run by regulatory agencies today.
The Jarkesy case involved the Securities and Exchange Commission (SEC) seeking penalties for alleged fraud against hedge fund manager and radio talk show host George Jarkesy. Utilizing a provision of the Dodd-Frank “financial reform” of 2010, the SEC chose to pursue Jarkesy in an internal proceeding before an administrative law judge (ALJ) rather than a normal federal court that is part of the judicial branch created by the Constitution’s Article III. As Loyola points out, in Jarkesy’s and other cases, the SEC “acts as rulemaker, prosecutor, and judge for America’s securities laws.”
On multiple grounds, the Fifth Circuit majority found in denying Jarkesy the venue of an Article III court in which to defend himself, the SEC violated the Const-itution. The court ruled th-at, because fraud has been a common-law offense to which jury trial right attac-hes, and the SEC in-house proceeding lacked a jury of his peers, Jarkesy was denied his Seventh Amend-ment guarantee of trial by jury. The court also ruled that Jarkesy was denied justice by violations of the Constitution’s separation of powers provisions. The ruling found that in enacting the Dodd-Frank provision Congress “unconstitutionally delegated legislative power to the SEC when it gave the SEC the unfettered authority to choose whether to bring enforcement actions in Article III courts or within the agency.” And, citing the precedent of the Supreme Court ruling in Free Enterprise Fund v. PCAOB (a case in which my organization—the Competitive Enterprise Institute (CEI)—was instrumental in bringing and in which CEI attorneys served as co-counsel to the victorious plaintiffs), the court ruled that the proceeding was unconstitutional because ALJs exercise executive functions without being removable by the president.
It is often said by proponents of the administrative state that Americans can’t be bound by the Constitution because the Founding Fathers would never have understood the complexities of today’s society. But as the Fifth Circuit ruling shows, they understood government proceedings that lacked checks and balances all too well. In particular, they wanted the check of a jury for those accused of most civil and criminal offenses.
One of the main grievances of the Founding Fathers that led to the Revolutionary War was the growing use by Great Britain of sketchy venues like admiralty courts to prosecute colonists for offenses such as smuggling. In these proceedings, colonists were forcibly made to go to the mother country or the then-British colony of Nova Scotia (now a Canadian province) for trials without juries and with much lower standards of evidence than normal colonial courts. These travesties of justice were a significant factor in turning a wealthy Virginia agricultural entrepreneur, who had fought as a colonel for Britain in the French and Indian War in the 1750s, into the leader of the Revolutionary War who would become the new nation’s first president: George Washington.
In a 1774 letter, Washington wrote to his longtime friend and neighbor Bryan Fairfax making the case for drastic action against Great Britain (repr-inted in the appendix of my book—George Washin-gton, Entrepreneur—and available at Founders Online). Washington identified the quasi-courts’ lack of justice as one of his primary motivations for drastic action against the mother country. In the letter, he decried the British government’s “transporting offen-ders into other colonies or to Great Britain for trial where it is impossible from the nature of the thing that justice can be obtained.” This letter from Washin-gton was coincidentally—or providentially—dated July 4, 1774.
Two years later on the same date, the Continental Congress formally adopted the Declaration of Indepe-ndence. This document would follow Washington and other prominent patriots in listing among its gri-evances that Great Britain was “transporting us beyo-nd Seas to be tried for pretended offences” and “dep-riving us in many cases of the benefits of Trial by Jury.”
The abuses of these British venues appear to have motivated Washington and the Constitution’s framers to ensure that the Constitution guaranteed both the right of trial by jury and a separation of powers between the executive, legislative, and judicial branches.
In a largely overlooked section of his 1796 Farewell Address, Washington stressed the importance of the separation of powers in preserving liberty and warned against government branches’ “encroachment” into one another’s functions. The words Washington spoke could be seen as an early warning against the growth of the “administrative state” upon which the Fifth Circuit placed limits.
Washington called for “caution in those entrusted with its administration to c-onfine themselves within their respective constitutio-nal spheres, avoiding in the exercise of the powers of one department to encroach upon another.” He then w-arned, “The spirit of encro-achment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism.”
By moving to restore the Constitution’s separation of powers and its right to jury trials for common-law offe-nses, the Fifth Circuit has affirmed George Washing-ton’s vision of fundamental justice. And that’s really something to celebrate this Fourth of July.

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